Having a puff at work

Having a puff at work

Vaping now treated the same as tobacco smoking

New Zealand laws have finally caught up with vaping (also called e-cigarettes) that have, for some time, enjoyed freedom from the country’s strict tobacco regulation.

Since 11 November 2020, however, all vaping products and behaviours must now be treated the same as for tobacco products and smokers. All businesses and employers
should be aware of the changes to SmokeFree legislation; for retailers of any vaping-related products these changes are especially important.

The reasons for vaping lagging behind tobacco products (legislatively speaking) were that not only had the technology for vape-related products developed rapidly, but also
because encouraging vaping is part of the government’s plan to help support smokers switch from tobacco products to ‘significantly less harmful alternatives’. You can read
more on that here.

If you run a business that is already required to be completely smoke-free (such as an early childhood centre, school or public transportation service), under the new
legislation here, vaping is now considered to be equally prohibited.

If you run a restaurant or bar, you must take all reasonable steps to ensure that vaping only occurs in the same spaces you already permit smoking – that is, in open areas.

Employers

Employers must take all reasonably practicable steps to ensure that no one vapes inside a workplace at any time, and that you provide a vape and smoke-free environment for
your employees.

If you allow smoking or vaping inside a work vehicle, you must ensure that members of the public do not have access to any part of that vehicle and that all staff (including
volunteers) who use the vehicle have given written consent to the vaping and/or smoking in that vehicle. This applies even if those employees or volunteers use the
vehicle on an irregular basis. If you do not get their consent, you could be liable for fines under the SmokeFree legislation, as well as potential personal grievance claims
from your employees.

General retailers

For businesses that retail vaping products (but are not specialist vaping stores), the changes to how vaping products can be sold and marketed are comprehensive.
The marketing restrictions that only applied to tobacco now apply to all vaping products.

Since 11 November 2020, non-specialist vape stores are prohibited from having a place name or trading name that signals that vaping products can be purchased; this includes online retailers.

More changes to come

Vaping laws may have taken a leap forward, but there are still significant changes to come.

From 11 May 2021, vaping products or smokeless tobacco products that contain colouring substances cannot be sold in New Zealand.

From 11 August 2021, unless you are a specialist vape retailer, you will also be prohibited from selling flavours other than tobacco, mint or menthol.

Packaging and labelling restrictions are expected to be regulated in 2021 with public consultation scheduled for early this year; there is a proposed effective date for the
regulations of 11 August 2021.

From February 2022, all vaping products must carry notifications similar to tobacco, notifying the consumer of the health dangers of the product. Regulators are creating a
database of all ‘notifiable’ products that will be searchable from 11 August 2021 so businesses and consumers can find out what products are required to carry the notification.

Keep up-to-date with changes

All businesses, regardless of whether they are retailers of vaping products or not, should keep up-to-date with changes to the SmokeFree legislation. Managing employee,
volunteer and customer spaces are obligations that apply to every business; penalties can be significant.

Please note that rules applying to specialty vaping retailers have not been covered in this article. If you are a speciality retailer for vaping products and you are not familiar
or would like some help to navigate these changes, please don’t hesitate to contact us.


DISCLAIMER: All the information published in Commercial eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Commercial eSpeaking may be reproduced with prior approval from the editor and credit given to the source. Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650 or 04 496 5513.